Morris v. Moore

• Court: Texas Court of Appeals
• Writing for the Court: Lane
• Citation: Morris v. Moore, 216 S.W. 890 (Tex. App. 1919)
• Decision Date: 05 November 1919
• Docket Number: (No. 7717.)
• Petition History: writ ref'd
• Parties: MORRIS et al. v. MOORE et al.

216 S.W. 890

MORRIS et al. v. MOORE et al.

(No. 7717.)

Court of Civil Appeals of Texas. Galveston.

November 5, 1919.

Rehearing Denied December 4, 1919.

Appeal from District Court, Brazoria County; Sam'l J. Styles, Judge.

Suit by Mrs. Mila Morris and others against E. R. Moore, T. L. Smith, and others. Judgment for named defendants, and plaintiffs appeal. Affirmed.

Munson & Williams, of Angleton, E. E. Townes, of Houston, and Oliver J. Todd, of Beaumont, for appellants.

Stevens & Stevens, of Houston, Elmer P. Stockwell, of Angleton, and H. O. Schulz, of Rosenberg, for appellees.

LANE, J.

This suit was filed in the district court of Brazoria county, Tex., by Mrs. Mila Morris, Mrs. Polly Carleton, Mrs. Pattie Rector and her husband, E. L. Rector, and Allen Townes, as heirs of R. J. Townes, deceased, on the 18th day of May, 1917, against E. R. Moore, T. L. Smith, and others, to recover a strip of land 200 varas in width and 5,000 varas in length, a part of the A. Darst league in Brazoria county, and being the same awarded to A. Darst, Jr., in the partition of the estate of his father, the original grantee.

The petition was in the usual and ordinary form of petitions in suits of trespass to try title.

By order entered prior to final trial, the suit was disposed of as to all the parties defendant except E. R. Moore and T. L. Smith, and the cause proceeded to trial between the plaintiffs and these two defendants only.

The defendants Moore and Smith each filed an answer. Each disclaimed as to any portion of the land sued for by plaintiffs except those parts thereof claimed by them and described in their respective answers. They also denied generally, pleaded not guilty, and also pleaded the three, five and ten years' statute of limitations in bar of the plaintiffs' right to recover in their suit.

Plaintiffs Mrs. Morris, Mrs. Carleton, and Mrs. Rector, by supplemental petition, each alleged that they were minors at the date of the death of their mother and father, under whom they claim as heirs, who died on the 24th day of August, 1863, and 3d day of October, 1865, respectively, as well as coverture in avoidance of defendants' pleas of limitation. Plaintiff Allen Townes also pleaded his minority in avoidance of such pleas of defendants.

The cause was tried before the court without a jury, and judgment was rendered for defendants.

It is shown that the A. Darst league, of which the land in controversy was a part, was granted to Abraham Darst on the 6th day of May, 1831; that the south one-half of the Darst league was partitioned among the original heirs of A. Darst, by running strips, parallel to its south line, of 200 varas in width and extending from east to west across the league a distance of 5,000 varas; and that these strips were numbered from 1 to 9, inclusive, beginning at the south side of the league, and in the partition of the league strip No. 2, which was the second from the south side, was awarded to A. Darst, Jr.

The plaintiffs claimed the land under a probate sale by the administrator of A. Darst, Jr., to R. J. Townes, who was their father and ancestor in title, and as evidence of said title introduced the following:

A filed paper in the succession of the estate of Abraham Darst, Jr., asking for letters of administration, cause No. 130, on file in the clerk's office of Brazoria county, Tex., filed by R. J. Townes for petitioner on December 27, 1837, addressed to the honorable court of Brazoria county, reading as follows:

"The petition of Samuel Damon respectfully represents that Abraham Darst departed this life in said county some short time since, intestate, leaving no relatives in the ascending or descending line, and possessed of a small estate. That his succession has not yet been opened and is indebted to petitioner. He therefore prays that the succession be opened and that letters be granted to him according to law."

An order of the probate court of Brazoria county, dated December 27, 1837, reading as follows:

"Samuel Damon having this day filed a petition praying for letters of administration in the estate of Abraham Darst, deceased, notice is hereby given with citation to all persons interested to appear at a special term of the court of probate to be held at the court house in Brazoria on the second Monday of January next ensuing, and show court why said letters should not issue as is customary and according to law."

An order of the probate court of Brazoria county, dated January 8, 1838, reading as follows:

"This day was heard the petition of Samuel Damon praying that he be appointed administrator of the estate of Abraham Darst, deceased, and public notice of said petition having been given according to law and no objection being filed, it is ordered, adjudged, and decreed by the court that the prayer of the petition be granted and that letters issue to him as is usual and in conformity to law."

Inventory of said estate, reading as follows:

"Inventory of estate of Abraham Darst, dec'd, 200 acres of land on the Mound league 12 miles from Columbia."

Petition of Samuel Damon, praying for order of sale of 200 acres of land, reading as follows:

"The petition of Samuel Damon, administrator of the estate of Abraham Darst, deceased respectfully represents that the assets in his hands and accruing to said estate are insufficient to pay the debts due by the same.

"Wherefore, he prays for decree of the court to make sale of 200 acres of land lying on the Mound league, 12 miles above Columbia and belonging to said estate, upon a credit until the first day of January, next. The petitioner herewith makes an exhibit of the debts of said estate. And will pray."

An order of sale, dated September, 1838, reading as follows:

"This day was heard the petition of Samuel Damon, administrator of the succession of Abraham Darst, deceased, representing that the assets in his hands and accruing to the estate are insufficient to pay the debts due by the estate, and praying for a decree to make sale of 200 acres of land lying on the Mound league, 12 miles above Columbia, and belonging to said estate, upon a credit until the first day of January next, and the said administrator having made exhibit of the debts due by said estate, and the court being satisfied of the correctness of the allegation contained in said petition, it is ordered, adjudged, and decreed that the prayer of the petitioner be granted, and that said land be sold at the door of the courthouse in Brazoria after giving 30 days' notice on a credit until the first day of January next, with bond and security and mortgage on the premises until final payment."

Notice of sale, in the matter of the estate of Abraham Darst, deceased, No. 130, in probate court, Brazoria county, Tex., dated November 15, 1838, which reads as follows:

"Probate Sale. By virtue of a decree of the honorable probate court for the county of Brazoria, I shall offer for sale at the door of the courthouse in the town of Brazoria, on Monday, 10th day of December next, upon a credit until the 1st day of January, next, the following property belonging to the estate of Abraham Darst, deceased, to wit:

"200 acres of land lying in the Mound league 12 miles above Columbia.

"Bond and security will be required and a mortgage on the premises until final payment; the title to be made at the expense of the purchaser.

"Brazoria, Nov. 15, 1838.

"William P. Scott, Judge of Probate Court."

Indorsed on back as follows: "No. 130. Purchased by R. J. Townes, $805."

The petition of Samuel Damon, administrator, asking for discharge as such administrator, together with exhibit thereto attached, and final account, reading as follows:

"To the Hon. Probate Court of Brazoria County:

"The petition of Samuel Damon, administrator of the estate of Abraham Darst, deceased, respectfully represents that he had fully administered said estate and paid all the debts. He therefore presents his account, which he prays may be received, and that he be discharged from all further liability.

                             "Jack & Townes
                  "Petition granted and administrator discharged
                               W. P. Scott, Probate Judge."
                

Exhibit:

Succession of Abraham Darst, Samuel Damon, Administrator
                                 Dr
                To board of decedent, from the 1st September,
                 1834, to 1st June, 1836, and funeral expenses.. $150 00
                To paid clerk's and judge's fees................   18 00
                To paid Jack & Townes, attorneys................   25 00
                                    Credits.
                By sale of 200 acres of land under decree of
                 probate court of Brazoria county, purchased
                 by R. J. Townes at $1.00 per acre.............. $200 00
                

And the order of the probate court of Brazoria county, dated December 2, 1840, reading as follows:

"This day came on to be heard the petition of Samuel Damon, administrator of the estate of Abraham Darst, deceased, representing that he has fully administered said estate and paid all the debts, and, having filed his account and exhibits, prays to be discharged from all further liabilities as said administrator, and the court having examined the same and being satisfied of the correctness of allegations in the petition contained, and also having examined the said account and exhibits, it is ordered, adjudged, and decreed by the court that the said account be allowed and recorded, and that the said Samuel Damon be and he is hereby fully discharged from all further liabilities as administrator of said estate on his paying the fees of court."

It was agreed by and between counsel for the parties to this suit that the land described in the plaintiff's petition in this suit was set apart to A. Darst, Jr., in the partition of the estate of A. Darst, Sr.

It was further agreed that Abraham Darst, Jr., is the common source of title to the 200 acres of land in controversy, of which this is a part, and being tract No. 2.

There was no evidence of the execution and delivery of the administrator's deed, but to...